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Monthly Archives: June 2016

Dismissal of FedEx Criminal Charges Should Embolden Corporate Defendants

When the federal government alleges or investigates criminal conduct against a corporation, it is rare for the corporation to put up a sustained fight against the allegations. Because the government can seem to have leverage to affect the public image and investor perceptions on corporations, those corporations often want to resolve criminal investigations before charges are ever brought and even before the criminal investigation is ever made public. In many cases, attorneys representing the corporation cooperate with the government from the outset of the investigation. And if the criminal investigation is made public, any criminal issues are resolved through either a Non-Prosecution Agreement (NPA), a Deferred Prosecution Agreement (DPA), or the company pleading to an agreed upon Information and penalties. Prior to such an agreement, companies and their outside counsel often conduct their own internal investigations and hand over evidence gathered and legal conclusions directly to the federal government in the hopes that the government will not bring criminal charges, or at the very least agree to a reduced penalty, based on this cooperation. With this atmosphere, the officers and directors of a corporate defendant may wonder how it is possible to provide the federal government with all the evidence it needs to make its case while at the same time defending itself. And even when the government compiles its own evidence many companies decide that it is far too risky or costly (it is unclear if this is true considering that companies rarely test this belief) to go to trial to defend themselves, and so opt to settle with the government rather than put up a fight. What has resulted is an environment where evidence and theories of prosecution remain unchecked and unchallenged. Anyone can champion a winning theory or positive summary of their evidence in a conference room – where it matters is in the courtroom. So it came as a refreshing change of pace when FedEx chose to fight criminal charges brought against it for its alleged role in delivering pharmaceuticals illegally prescribed through online pharmacies. FedEx faced potential criminal fines of $1.6 billion but had the courage to require the Department of Justice to prove its case in the courtroom. It also came as no surprise that when gearing up to fight the charges, Fedex retained an attorney known as a fierce defender, Cris Arguedas, of Arguedas, Cassman & Headley, LLP. Arguedas and the defense team won their first major victory in March of this year when the judge dismissed many counts because the prosecutors charged the wrong entities and the statute of limitations limited their ability to amend the charges. The parties agreed to a bench trial before United States District Judge Charles Breyer for the Northern District of California which started June 13th. After only a few days into the trial, the prosecutors dismissed all remaining charges against FedEx, giving the company and Arguedas a major and well-deserved victory. What does this mean for the future of corporate criminal investigations and cases? I personally hope it will serve as a wakeup call to other corporations. I have often wondered what would happen if all corporations and outside counsel just refused to continue conducting internal investigations on behalf of the federal government. The system would collapse as we know it, because there simply aren’t enough prosecutors and investigators to support it. The federal government has done a masterful job of outsourcing investigations to the private sector and the loser is not only the corporation, but all citizens. Our system is at its best when it is adversarial. That is what our constitution intends. That means that evidence is challenged and tested. That means the government has the burden to introduce its own evidence and prove beyond a reasonable doubt that a crime has taken place. But, instead, what has developed over time is a government who acts like an emboldened bully, forcing corporations to hire outside counsel to do its work for them and assume a non-adversarial posture for fear of losing cooperation credit. It’s time that more and more companies stand up to the bully in the room – thankfully we still have companies like FedEx and attorneys like Cris Arguedas who are willing to do just that. The post Dismissal of FedEx Criminal Charges Should Embolden Corporate Defendants appeared first on Women Criminal Defense Attorneys.
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Dear President Obama

Dear President Obama, I am a criminal defense attorney, and at the prodding of one of my colleagues, Marjorie Peerce of Ballard Spahr, I have volunteered my time to screen clemency petitions through the Clemency Project, a project to provide free legal assistance to federal prisoners serving longer sentences than they would have received if sentenced today.  In this role, I review multiple clemency petitions and evaluate whether an executive summary should move on to the project’s steering committee.  It is overwhelming how many individuals are languishing in prison with life sentences who are low level drug offenders with no history of violence. Being a small part of helping to right the wrongs created through overcriminalization has been rewarding beyond belief. But it has also been a stark reminder of the injustice endured by so many of our nation’s prisoners. In my work with the Clemency Project, I agreed to prepare an executive summary to support a petition for clemency for an old CJA (Criminal Justice Act) client of mine who received a 200 month sentence for selling 58 grams of crack. The importance of this responsibility cannot be overstated.  It feels different than defending someone facing a charge – this is a person’s last chance in my hands. To get to know the personal story again behind this human being is both tragic and disturbing. He grew up with parents plagued by addiction and witnessed both his mother and father using cocaine in the family home from an early age.  His father died when he was twelve, a tragedy that sent him into a downward spiral.  He dropped out of school in the ninth grade and became so addicted to narcotics himself that, for the six years leading up to his arrest, he spent every day getting high on drugs to feed his crippling addiction.  Eight months after he was sentenced in this case, his mother died from HIV.  My heart broke when I discovered that, in the close to ten years he has been incarcerated, no one has gone to visit him. I wanted to get in my car and go visit him myself. The facts of the case and his criminal history don’t even begin to justify a double-digit prison sentence for a 23 year-old young man. I am disturbed and outraged at how our system has hurt this young man. All I can think about as I am finalizing the executive summary to submit to the Clemency Project is that my work is not enough. I am consumed with the thought that I must reach out directly to you, Mr. President. My hope is that I can express to you the magnitude of the injustice that occurred here, and that I can implore you to use your discretion to right this wrong.  My hope is that I can help you see what I see about this young humble and kind man who never had a chance in life to be more than a small time street level drug dealer. My fellow defense attorneys who’ve seen these kind of injustices might say that no one is ever going to see this letter, that it is a useless effort.  We know that we are up against steep odds whenever we represent a defendant charged with a drug offense.  We tell ourselves these are the crack guidelines, and we can’t change that.  We tell ourselves that this is a tough judge, and we can’t change that.  And in spite of our pleas for leniency or even just a fair sentence, we walk away having to swallow our outrage, understanding that we can only do so much to change the system. Our cynicism, shaped by years of injustice, makes us think that no one in power is ever going to care about the cause of an insignificant young man like my client, certainly not the President of the United States. I am writing to you, Mr. President, because I believe you do care. I have been troubled by this case for ten years and although I am grateful that, in your presidency, you have shown concern for these issues, I somehow want you to hear that a young man was designated a career offender for selling 58 grams of crack when he had previously been charged with having sold cocaine on only two prior occasions of such small quantities that in one instance he only made $15.00. And as this was unfolding, like in so many other cases, those entrusted as officers of the court stood by and acted as if it was normal and commonplace: simply our criminal justice system at work. I want to ask you to meet my client and learn the tragic story that brought him to where he now sits, in prison. I want you to be the one that finally visits this young man, not as a PR opportunity but to truly see him and talk to him. This act would serve as an acknowledgment that his life really does matter.  I want you to bear witness, with me, to the severity of what our criminal justice system did to him.  In my mind, this would be a meaningful step in repairing the injustice, which could change his life forever. The post Dear President Obama appeared first on Women Criminal Defense Attorneys.
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